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THE SECOND DEPT USED THIS OPINION AS A VEHICLE TO EXPLAIN THE COMPLEX PROOF REQUIREMENTS FOR SUMMARY JUDGMENT MOTIONS BROUGHT IN FORECLOSURE ACTIONS, EMPHASIZING THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, explained in detail the proof requirement for a summary judgment motion in a foreclosure action, emphasizing the requirements of the business records exception to the hearsay rule. The court determined that the bank’s proof of standing was sufficient, but the proof of defendant’s default was not. The opinion is too detailed to be fairly summarized here and should be consulted for guidance in foreclosure actions:

From an appellate perspective, the recent flood of foreclosure appeals has revealed consistent and repeated confusion about some of the most fundamental aspects of the procedural, substantive, and evidentiary law that must be routinely applied in a foreclosure context. In an effort to provide additional clarity in this important area of the law, we deem it appropriate to collect and reiterate some of these foundational principles in the hope that such clarity will eliminate many of the disputes that make up an ever-increasing proportion of trial-level dockets. For the reasons that follow, we modify the order appealed from.

… [I]t bears noting that the business record exception to the hearsay rule applies to a “writing or record” (CPLR 4518[a]). Although “[t]he foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business” … , it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted … . Accordingly, “[e]vidence of the contents of business records is admissible only where the records themselves are introduced” … . Bank of N.Y. Mellon v Gordon,2019 NY Slip Op 02306, Second Dept 3-27-19

 

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DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 OR THE MORTGAGE (SECOND DEPT).
PLAINTIFF BANK FAILED INCLUDE REFERENCED DOCUMENTS WITH ITS MOTION PAPERS AND THEREBY DID NOT DEMONSTRATE DEFENDANTS’ DEFAULT OR PLAINTIFF’S STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).
SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS.
POST-VERDICT INTEREST IN THIS ACTION AGAINST THE NEW YORK CITY TRANSIT AUTHORITY SHOULD HAVE BEEN CALCULATED AT THREE PERCENT PURSUANT TO THE PUBLIC AUTHORITIES LAW (SECOND DEPT).
PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT).
TO STATE A CAUSE OF ACTION FOR BREACH OF CONTRACT, THE PROVISIONS OF THE CONTRACT WHICH WERE ALLEGEDLY BREACHED MUST BE IDENTIFIED IN THE COMPLAINT; WHERE IT IS CONCEDED THAT A CONTRACT EXISTS, A CAUSE OF ACTION FOR QUASI CONTRACT MUST BE DISMISSED (SECOND DEPT).
ABSENT FRAUD, COLLUSION OR A MALICIOUS OR TORTIOUS ACT, DEFENDANT ATTORNEYS COULD NOT BE LIABLE FOR ACTING WITHIN THE SCOPE OF THEIR AUTHORITY AS AGENTS OF THE CLIENTS AND ALLEGEDLY ADVISING THEIR CLIENTS TO BREACH A CONTRACT WITH PLAINTIFFS (SECOND DEPT).

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